A loss for the Christian lobby: the ECHR ruling reinforces the crucial point that religious rights don't automatically trump the rights of others

Our Religious Affairs Correspondent analyses this morning's landmark verdict

Share

The European Court of Human Rights, often unfairly, gets a regular kicking in the British press. So it's good to see that the judges in Strasbourg have come up with a series of careful and nuanced rulings this morning on the issue of religious discrimination that are a cracking advertisement for exactly why we need such a court.

The judgements cover four cases that were brought by British Christians who claimed they were discriminated against by their employers because of their religious beliefs. 

British Airways steward Nadia Eweida and NHS nurse Shirley Chaplin both lost employment tribunals because they refused to take off necklaces bearing a crucifix. Lilian Ladele, a marriage registrar from Islington, and relationship counsellor Gary McFarlane lost their jobs because their opposition to same sex relationships impinged on their ability to do their jobs without discriminating against others.

While accepting Eweida had been discriminated against, the ECHR threw out the other three cases for very good reasons. I’ll go into why the judges found the way they did below.

Striking a fair balance

As these cases have wound their way through the courts, the Christian right has portrayed all four as examples of how adherents are discriminated against and how their faith is supposedly being marginalised in the public sphere. They have already started to portray the Eweida win as an important victory “upholding the right to wear a cross at work”.

But, as the ECHR has ruled today, it’s a lot more complicated than that and, in reality, this is a loss for the Christian lobby.

At the heart of this legal and moral debate is the question of competing rights. Religious freedom is a vital human right recognised by both UK and European law. But it is not an absolute right. That’s because occasionally the religious views of one person may impinge upon the equally valid rights of another group of people.

Religious opposition to same sex relationships is the most common current day example of this dilemma. Those with theologically inspired opposition to same sex relationships are allowed to be anti-gay. They can disapprove of same sex relationships, publicly speak out against them and say they are damned to eternal hellfire if they like.

But where the courts are often asked to draw a line is when a religious person directly impinges the rights of a gay person. It’s a classic example of the liberalism espoused by JS Mill. Generally, we should be allowed to do, say and believe what we like as long as what we do doesn’t harm (and that does not include causing offence) others.

In the two cases of the marriage counsellor and the registrar, Strasbourg ruled that the British courts “struck a fair balance” between these competing rights when they decided McFarlane and Ladele’s employers were right to dismiss them. Here were two Christians, employed to offer a service to all people regardless of race, gender and sexual orientation who couldn’t do so because of their religious belief.

The court found that both the marriage charity Relate and Islington borough council had clear policies that “required employees to act in a way which did not discriminate against others.”  These policies, the court found, “had the legitimate aim of securing the rights of others, such as same-sex couples, which were also protected under the Convention (My emphasis).” Treating people differently because of sexual orientation “required particularly serious justification”. 

The court has effectively reinforced a point it has made many times before but it’s an important one to restate again and again: religious rights don't trump rights of others unless there is a very good reason. A balance has to be struck and in these cases, the ECHR ruled, the British courts did the right thing.

The crucifix cases are slightly different. Unlike Judaism, Islam and Sikhism which (depending on the school of thought) compel a believer to wear certain items or forms of dress, there is nothing in Christian doctrine that states an adherent must wear a crucifix. It’s a manifestation of one’s faith, but it is not dogma. Nonetheless the manifestation of faith is an important human right.

For Eweida and Chaplin no-one else’s rights are being directly threatened by their desire to wear a crucifix. So why did the court find in favour of Eweida and not Chaplin? The answer is relatively bland – sheer practicalities.

As an NHS nurse Chaplin has to conform to her employer’s standards on health and safety. When the hospital she worked at brought in new v-neck uniforms she was asked to remove her cross. Doctors feared that any overhanging jewellery might pose a risk because it could be pulled on by a patient or might touch an open wound – increasing the risk of infection. Given the importance of health and safety in a hospital the ECHR concluded that requiring Chaplin to remove her cross “had not been disproportionate and that the interference with her freedom to manifest her religion had been necessary in a democratic society.”

A silver lining

Eweida had more luck because BA’s policy to ban her from wearing a cross was fraught with inconsistencies. As a Coptic Christian, Eweida had always worn a small crucifix under her uniform. In mid-2006 she decided to wear the cross openly. British Airways’ uniform code required women to wear a high necked shirt and a cravat, with no visible jewellery and when Eweida refused to remove her crucifix she was offered admin work where she wouldn’t need to wear a uniform. Ewieda refused. Then in February 2007, BA backed down and allowed employees to display religious or charity symbols.

That U-turn was one of the crucial reasons why Eweida won her case. The court once more spoke of competing rights but in this case it was the right of an employee to manifest their faith and the right of an employer to protect its brand image. In this case, BA had allowed Muslims and Sikhs to wear hijab/turbans respectively. So its brand image clearly didn’t demand the secular. Meanwhile, the fact that the company later changed its uniform policy meant – in the eyes of the court – “that the earlier prohibition had not been of crucial importance”.

Ultimately today’s rulings are a blow for the Christian lobby. Only one out of the four cases won and the one that did, did so because BA had an inconsistent policy towards protecting faith in the workplace.

What the ECHR hasn’t done is given Christians – or any other religion – a carte blanche to discriminate against others on the grounds of belief. It means future claims where Christians have discriminated against gay men and women when offering services (such as a B&B room) and then pleaded religious freedom are less likely to succeed. 

But the Christian lobby shouldn’t feel too down because there is a silver lining. The legal point that competing rights don’t automatically trump each other might protect them one day. After all, if a gay B&B owner refuses to accommodate a Christian because of their beliefs; or refuses to marry a Christian couple; or provide them relationship counselling – there’s a strong chance they’d win their case in the courts for the same reasons.

React Now

  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

SThree: Trainee Recruitment Consultant - Dublin

£13676.46 - £16411.61 per annum + OTE: SThree: SThree Trainee Recruitment Cons...

Ashdown Group: Marketing or Business Graduate Opportunity - Norwich - £22,000

£18000 - £22000 per annum + training: Ashdown Group: Business and Marketing Gr...

SThree: Trainee Recruitment Consultant

£20000 - £25000 per annum + Commission: SThree: Are you great at building rela...

Ashdown Group: Database Analyst - Birmingham - £22,000 plus benefits

£20000 - £22000 per annum + excellent benefits: Ashdown Group: Application Sup...

Day In a Page

Read Next
Labour leader Ed Miliband unveils Labour's pledges carved into a stone plinth in Hastings  

Election 2015: Smash the two-party system! Smash the voting system!

Armando Iannucci
Tactical voting is a necessary evil of the current first-past-the-post system, where voters vote against what they do not want rather than in favour of what they do  

Election 2015: Voting tactically has become more fraught in new political order

Michael Ashcroft
General Election 2015: Ed Miliband's unlikely journey from hapless geek to heart-throb

Miliband's unlikely journey from hapless geek to heart-throb

He was meant to be Labour's biggest handicap - but has become almost an asset
General Election 2015: A guide to the smaller parties, from the the National Health Action Party to the Church of the Militant Elvis Party

On the margins

From Militant Elvis to Women's Equality: a guide to the underdogs standing in the election
Amr Darrag: Ex-Muslim Brotherhood minister in exile still believes Egypt's military regime can be replaced with 'moderate' Islamic rule

'This is the battle of young Egypt for the future of our country'

Ex-Muslim Brotherhood minister Amr Darrag still believes the opposition can rid Egypt of its military regime and replace it with 'moderate' Islamic rule, he tells Robert Fisk
Why patients must rely less on doctors: Improving our own health is the 'blockbuster drug of the century'

Why patients must rely less on doctors

Improving our own health is the 'blockbuster drug of the century'
Sarah Lucas is the perfect artist to represent Britain at the Venice Biennale

Flesh in Venice

Sarah Lucas has filled the British pavilion at the Venice Biennale with slinky cats and casts of her female friends' private parts. It makes you proud to be a woman, says Karen Wright
11 best anti-ageing day creams

11 best anti-ageing day creams

Slow down the ageing process with one of these high-performance, hardworking anti-agers
Juventus 2 Real Madrid 1: Five things we learnt, including Iker Casillas is past it and Carlos Tevez remains effective

Juventus vs Real Madrid

Five things we learnt from the Italian's Champions League first leg win over the Spanish giants
Ashes 2015: Test series looks a lost cause for England... whoever takes over as ECB director of cricket

Ashes series looks a lost cause for England...

Whoever takes over as ECB director of cricket, says Stephen Brenkley
Fishing for votes with Nigel Farage: The Ukip leader shows how he can work an audience as he casts his line to the disaffected of Grimsby

Fishing is on Nigel Farage's mind

Ukip leader casts a line to the disaffected
Who is bombing whom in the Middle East? It's amazing they don't all hit each other

Who is bombing whom in the Middle East?

Robert Fisk untangles the countries and factions
China's influence on fashion: At the top of the game both creatively and commercially

China's influence on fashion

At the top of the game both creatively and commercially
Lord O’Donnell: Former cabinet secretary on the election and life away from the levers of power

The man known as GOD has a reputation for getting the job done

Lord O'Donnell's three principles of rule
Rainbow shades: It's all bright on the night

Rainbow shades

It's all bright on the night
'It was first time I had ever tasted chocolate. I kept a piece, and when Amsterdam was liberated, I gave it to the first Allied soldier I saw'

Bread from heaven

Dutch survivors thank RAF for World War II drop that saved millions
Britain will be 'run for the wealthy and powerful' if Tories retain power - Labour

How 'the Axe' helped Labour

UK will be 'run for the wealthy and powerful' if Tories retain power